Brigham A. Fordham has posted Disability and Designer Babies: Rethinking the Debate Over Genetic
Interventions in Favor of Disability, Valparaiso University Law Review,
Forthcoming (2010) on SSRN.Here is the
abstract:

If deaf parents purposely use new
genetic technologies to give their child the genes for deafness, have the
parents harmed the child? This and similar questions regarding parents who make
genetic choices in favor of disability have preoccupied much of the scholarship
regarding new artificial reproductive technologies. Some have argued that we
should determine whether a child has been harmed by pondering whether the
child’s “right to an open future” has been violated by the parents’ genetic
intervention. If that right is violated, some say, the parents should be
subject to tort liability for inflicting harm upon the child.

This Article considers the
consequences of attempting to hold parents liable in tort for making genetic
decisions in favor of socially disfavored physical attributes, such as
disabilities. A legal scheme that asks judges and juries to separate “good”
physical attributes from “bad” ones is problematic, especially when dealing
with disabilities. Parents, who have personal experience with the physical
traits in question, are better equipped to decide what is best for their
offspring than jurors who have less experience and less at stake. Using the
“open future” framework to second-guess parental decisions about socially
disfavored physical traits only disrupts the parent-child relationship and
suggests that discriminatory attitudes are natural and acceptable.

Moreover, the concern over genetic
interventions in favor of disability is largely misplaced. Disabled parents who
want disabled children are few in number and diverse in purpose. The recent
focus on these parents in the debate over genetic intervention improperly
assumes that such parents are incapable of making good choices and that the
physical traits they prefer are inherently damning.